December 11, 2020

Democracy and Separation of Powers in the Time of COVID and Beyond

December 11, 2020

CONTACT: Nancy Rodriguez,

Washington, D.C.  – In an effort to combat COVID-19, state and local governments have used executive powers to order citizens to stay at home, to close schools and businesses, to require the wearing of face masks, and to limit the size of gatherings.

These orders have been challenged throughout the country on the grounds that they infringe upon constitutionally protected individual rights and violate the separation of powers.

A new Issue Brief published today by the American Constitution Society explains that, although the vast majority of these individual rights claims have been unsuccessful in overturning government orders, “as the pandemic continues to wear on…the courts may be losing patience, particularly as legislatures begin to assert their authority to shape the pandemic response.”

The Issue Brief, Democracy and Delegation in a Public Health Emergency: Statutory Interpretation and Separation of Powers, is authored by Lindsay F. Wiley, Professor of Law and Director of the Health Law and Policy Program at Washington College of Law.

Recent government orders restricting businesses and limiting individual liberty to mitigate widespread community transmission of the coronavirus raise complex legal questions for which judicial precedents provide few answers.

Legal challenges to state and local orders have raised questions about who has the authority to adopt pandemic mitigation measures, by what criteria, and for how long, Wiley notes. Consequently, the courts have had considerable discretion to shape their own role in pandemic response. Most judges have granted wide leeway to state and local executive-branch officials on questions of statutory interpretation and separation of powers.

Wiley also uses the Brief to explore the roles of all three branches of government during a public health emergency, and calls for legislative reforms to put pandemic response measures on firmer statutory footing to guide executive responses during this and future crises.


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